Kowalski v Cole
[2010] FMCA 792
•5 October 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| KOWALSKI v COLE & ORS | [2010] FMCA 792 |
| TRADE PRACTICES – Summary dismissal of application. |
| Trade Practices Act 1974, ss.52, 53 & 6(3)(a)(b) Federal Magistrates Act 1999, s.17A Federal Magistrates Court Rules 2001, r.13 |
| Kowalski v Cole & Anor [2009] FMCA 1222 Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 |
| Applicant: | KAZIMIR KOWALSKI |
| First Respondent: | RUSSELL JOHN COLE |
| Second Respondent: | WILLIAM ANDREW SIM |
| Third Respondent: | R.J. COLE & PARTNERS |
| File Number: | ADG 99 of 2010 |
| Judgment of: | Lindsay FM |
| Hearing date: | 5 October 2010 |
| Date of Last Submission: | 5 October 2010 |
| Delivered at: | Adelaide |
| Delivered on: | 5 October 2010 |
REPRESENTATION
| The Applicant: | In person |
| Counsel for the Respondents: | Mr S. Thomas |
| Solicitors for the Respondents: | R J Cole & Partners |
ORDERS
The application filed by the applicant on 4 May 2010 and amended on 12 July 2010 be summarily dismissed pursuant to Rule 13.10 of the Federal Magistrates Court Rules 2001.
Liberty to the respondents to bring any application for costs arising from this determination PROVIDED they do so within the next fourteen [14] days upon written request to the Associate to FM Lindsay.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
ADG 99 of 2010
| KAZIMIR KOWALSKI |
Applicant
And
| RUSSELL JOHN COLE |
First Respondent
| WILLIAM ANDREW SIM |
Second Respondent
| R.J. COLE & PARTNERS |
Third Respondent
REASONS FOR JUDGMENT
Before me today is an application by the three respondents to Mr Kowalski’s amended application filed on 12 July 2010 to summarily dismiss that application. It is an application then that is made under the aegis of section 17A of the Federal Magistrates Act 1999, which section is really reflected in Rule 13 of the Federal Magistrates Court Rules 2001 and the application of the respondents is that this application has no reasonable prospect of success because the issues raised by the application have been determined in a series of earlier decisions of courts of the State jurisdiction.
I do not think there is any purpose served in me getting into an analysis of whether Anshun or res judicata, as a plea, stands on its own as a ground for dismissing a matter summarily. In other words, it may well be there is an intersection between the powers under section 17A of the Act and the common law notions of res judicata and Anshun estoppel. But I accept that if I were to find that the proceedings ought to be prevented from continuing on account of either of those doctrines, I would be making an order which is of the same practical effect as an order that says that the proceedings have no reasonable prospect of success.
The application, as I say, was filed on 12 July. The substantive parts of it are contained in paragraphs 1, 2 and 3. The provenance of the application is a series of determinations by a court of summary jurisdiction (the Magistrates Court), the Supreme Court and the District Court in proceedings involving these same parties, that is, Mr Kowalski and the firm of which the respondents are partners and the firm itself, as variously constituted over the years since the controversy first arose between the parties.
There are a series of issues raised relating to the use to which the solicitors who constitute the three respondents have put various trust moneys held on Mr Kowalski’s behalf by them and their dealing with trust moneys and other funds of the applicant, in the wake of their having acted for him in an unsuccessful application against Mitsubishi at common law which were the subject of a determination by Lee J in 1989.
This same controversy that was generated in the wake of those unsuccessful proceedings, have already been substantially examined by Simpson FM in a decision with the same applicant and same respondents, Kowalski v Cole & Anor [2009] FMCA 1222. That decision contains a very helpful summary of the background of this dispute. When I say the background, the various proceedings: the Mitsubishi proceedings themselves: Mr Kowalski’s professional negligence suit against the respondents in the District Court in 1996; a taxation of costs proceedings brought by the respondents but then subsequently abandoned by them; the disciplinary proceedings brought by Mr Kowalski against the respondents in the Legal Practitioners Disciplinary Tribunal; the trust account balance proceedings that ended up before Lunn J in the Supreme Court. In fact, there were two aspects to that matter. His Honour was also seized of the matter when Mr Kowalski issued a notice for specific directions in relation to the earlier taxation proceedings that had been abandoned by the respondents in August 2007.
The first determination of Lunn J was a determination that the applicant’s application that the taxation proceedings be dismissed for want of prosecution, he was successful in that regard. The second Lunn J proceedings were the proceedings to which I have referred, being the notice for specific directions filed by Mr Kowalski to revivify the taxation of costs issue. His Honour also dealt with Mr Kowalski’s application to set aside the order dismissing the taxation proceedings. Perhaps most significantly of all, in terms of the outcome of these proceedings, there were proceedings that transpired in the Christies Beach Magistrates Court after the taxation proceedings were dismissed on Mr Kowalski’s application in the Supreme Court, in which the respondents sought declarations from the Court as to what should happen to the trust account balance of the funds held by them on behalf of Mr Kowalski. So Simpson FM sets out the history of those matters and I do not propose to repeat, again, that series of events.
I am satisfied too, on account of the matters to which Mr Thomas has put to me, that all the sums of money that are the subject matter of paragraphs 1, 2 and 3 of the amended application are sums of money that can be specifically identified in each of the proceedings to which I have referred. The sum of $11,935 is a sum of money that is constituted of a sum of $10,000 and $1,935.50 which was a sum of money identified and discussed by Ward ASM in his judgment. That judgment is formally before me in these proceedings as an annexure and that will be Exhibit 3.
That sum of $10,000, that is the sum we add to the $1,935.50 to get to the figure of $11,935.50 which is mentioned in both paragraphs 1 and 3 of the amended application, is a sum of money that again is dealt with and discussed by Ward ASM in his determination. The sum of $18,634.66, identified in paragraph 1, is a matter that is the subject of discussion by Mr Ward ASM in his determination of 16 July 2007 and in particular in paragraph 14.
That latter sum of $3000 is discussed and identified by Anderson J in the professional negligence proceedings to which I referred. That judgment is before me as exhibit 5.
The subject matter of the application is a subject matter that has already been identified and discussed in this series of judgments to which I have referred. Simpson FM summarily determined Mr Kowalski’s claim in that cause of action which was before him. It was a very similar, though not identical, cause of action. The principal difference, apart from the engagement of section 6(3)(a)(b) of the Act, presumably to get around the fact that the first two respondents are not corporations, is Mr Kowalski’s enlargement of the claim to include an allegation of fraud. But those proceedings were very similar, that is, the proceedings determined by Simpson FM were very similar to the amended application that is before me.
There was some suggestion in the earlier part of the respondent’s application before me today that they would rely on Simpson FMs judgment as a matter entitling them to the orders thereafter. For reasons I think I have made plain, I am reluctant to enable that to happen. It seems to me that the decision of Simpson FM, couched as it was in terms of summary dismissal at claim, was an interlocutory determination and I have significant doubts, without making any specific finding in relation to the matter, as to whether such an interlocutory judgment can ground a submission or a plea of either res judicata or of Anshun estoppel. Given that position, the applicants in this application, the respondents, were content to rely upon the earlier determinations to which I have referred.
The concept of res judicata is an ancient one. It is discussed in the Anshun decision itself, which is Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589, which decision itself then constituted a significant extension of the principle. The rule as to res judicata is discussed, in particular, in the joint judgment of Gibbs CJ, Mason and Aitken JJ at page 597 of the report. I do not propose to repeat that here, save for the passage at the bottom of that page where their Honours say:
The rule as to res judicata comes into operation whenever a party attempts in the second proceeding to litigate a cause of action which is merged into judgment in a prior proceeding.
There is also discussion of the concept of res judicata further up on that page by the same judges.
Their Honours were not satisfied that the case before them was an exemplification of that principle, neither were they satisfied, for similar reasons, that it was a case of issue estoppel, but they went on to extend the availability of the plea of the nature of res judicata to cover situations where a particular aspect of the controversy was not promoted or adjudicated upon, but there was a reasonable expectation that it ought to have been. That is, the plea extends to preventing the promotion of aspects of a cause of action that ought to have been promoted and the subject of judicial determination of the earlier phase of the proceedings.
I think, having a close look at the orders sought by Mr Kowalski in his application of 12 July 2010, that it is manifest that he is seeking to agitate precisely the same issues as were determined in the series of judgments of the State jurisdiction to which I have referred.
I am also satisfied that there is no material, “material” in terms of today’s application, difference between the application that is before me and that which was before Simpson FM, but I have already indicated why I think it is inappropriate to rely upon that determination in the result of the outcome of the proceedings before me. The causes of action are all the same; Mr Kowalski is still seeking to revivify controversies that were quelled, resolved, by judicial determination, many years ago.
THE COURT ADJOURNS
THE COURT RESUMES
Let the transcript record that I adjourned the Court when Mr Kowalski refused to comply with my direction that he be silent during the delivery of my judgment. Had he still been in Court as I have reconvened I would have taken steps to have him removed from Court, which is always regrettable, but we cannot have the delivery of ex tempore reasons interrupted in the fashion that he purported to do.
I was indicating that I regarded the cause of action that was before me in this amended application as being near identical to that which was before Simpson FM. I have given my Reasons now as to why it is inappropriate to rely upon his Honour’s determination as grounding the orders sought by the respondents on this application today, but I have indicated that it is manifest today that it is the same series of controversies that Mr Kowalski is seeking to reagitate.
What he has tried to do is persuade the Court that the proceedings have a different character or a different basis by introducing the concept of fraud. The claim is a claim for orders pertaining to sections 52 and 53 of the Trade Practices Act and so were the proceedings before Simpson FM. What Mr Kowalski has tried to do, though, is to couch that claim in terms of the commission of a fraud, but when we go to the particulars in the application identified in all of the affidavits that he has filed before me, when we go to the particulars of what is said to constitute the fraud, we find precisely the same allegations as have already been the subject of judicial determination in those earlier proceedings.
It is important, I think, to bear in mind that the summary dismissal power should always be used sparingly. It is especially important to bear that in mind in proceedings in this Court which, generally speaking, unless the Court makes an order to the contrary, do not proceed by way of pleadings. It is especially important to bear in mind that it is inappropriate to use the summary dismissal power where there are real controversies as to factual matters.
But a fair reading of the great quantity of material which has been relied upon by each of the parties in these proceedings indicates that there is no significant factual dispute as to what has transpired. There is no dispute as to the facts relevant to the determination of the summary dismissal application.
Mr Kowalski obviously puts in issue a whole series of factual findings made in those earlier determinations, but that is not the kind of factual controversies to which I am referring as being inappropriate in the context of summary dismissal proceedings. The facts of those judgments, the findings within them, speak for themselves, and it is those findings which, in my view, make manifest that this is an attempt to revive already quelled controversies by throwing over the allegations a new cloak, as it were, being the cloak of fraud.
I am satisfied that all aspects of the matter as set out in paragraphs 1, 2 and 3 of the amended application are matters that either have been determined in the judgments to which I have referred or fairly ought to have been raised and pursued by Mr Kowalski in those proceedings.
That being the case, and the proceedings being liable to be met by a plea of res judicata or Anshun estoppel, it follows that the proceedings have no reasonable prospect of success and, in those circumstances, there will be an order summarily dismissing the application filed on 12 July 2010.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Lindsay FM
Associate:
Date: 25 October 2010
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